S.N.JHA & P.N.Y ADAV, JJ.:- The sole appellant of this appeal has been convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life. He has also been convicted under section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years.

2. The case of the prosecution is that Raj Kishore Sah alias Munna, the deceased of the case, lived in a lodge known as Rameshwar Sharma lodge at Manjhauli Dharamadas, in Muzaffarpur town. He was a student of the 1st year Science in the M.P. Sinha Science College, Muzaffarpur. One Sanjay Pathak alias Murari who was put on trial but acquitted was his room mate. The informant of the case, Deepak Kumar, a student of 1st year Science of R.D.S. College, Muzaffarpur was his friend. He too lived in a lodge belonging to Shivchandra Singh, one Km. away. They used to visit each other regularly. On 23.7.1992 at 6.00 P.M. Raj Kishor Sah went to the lodge of the informant and from there they came to Rameshwar Sharma Lodge. At about 7.00 P.M. when the informant and the deceased were gossiping Sanjay Pathak went out on the pretext of easing himself. At that time the appellant who lived in another room in the same lodge across the room in which the deceased and Sanjay Pathak lived, was present in his room. At about 7.10 P.M. he i.e. the appellant entered into the room of the deceased and fired at him from his country made pistol from a close range. The bullet pierced into the right side of chest. Raj Kishore Sah fell down on the chowki injured. The informant became nervous and tried to lie on other chowki by folding his left leg. In the meantime, the appellant took out the empty cartridge from his pistol, put it in his pocket and after loading another live cartridge fired at him i.e. the informant. The bullet hit the left palm near wrist joint and left thigh causing bleeding injuries. The appellant thereafter left the room and Sanjay Pathak entered. By then Raj Kishore Sah had succumbed to his injuries. Sanjay Pathak, it is said, pulled out the blood drenched trousers of the informant and gave him Lungi to put on. He then left the room on the pretext of getting rickshaw. He was, however, caught by the people who had assembled outside and handed over to the Chowkidar Jai Narain Ram. The appellant, however, managed to escape.

3. The incident was narrated by the informant to the S.I. Md. Yaqub of Muzaffarpur Sadar Police Station at 8.00 PM. On the basis of his statement Muzaffarpur Sadar P.S. Case No. 190/92 was registered and investigation commenced. At the end of investigation, after completing the required formalities, Md. Yuqub submitted charge-sheet against the appellant and the said Sanjay Pathak.

4. At the trial the prosecution examined nine witnesses to prove its case out of whom PW. 2 Raghunath Ram and P.W. 4 Baijnath Sharma were declared hostile. The Doctor - who held the post mortem, namely, Dr. Vinod Kumar Mehta was examined as P.W. 7 while S.I. Md. Yaqub was examined as P.W. 8. P.W. 9 Anand Kumar Choudhary was examinee as a formal witness to prove the injury report with respect to the informant. The remaining three witnesses, namely, P.W.1 Jai Narayan Ram, P.W. 5 Mano Paswan and P.W.6 Dipak Kumar were examined as material witnesses. While the former two claimed to have reached the place of occurrence after incident, taken custody of Sanjay Pathak and informed the police about the occurrence. P.W. 6 Deepak Kumar, the informant, examined himself as eye witness.

5. No witness was examined in defence. They took the usual plea of innocence and false implication. At the end of trial the trial court acquitted Sanjay Pathak but convicted the appellant in the manner stated above.

6. Sri Shree Nandan Prasad Singh, learned counsel for the appellant made the following submissions: The story told by the prosecution is not true and complete story. Though two shots are said to have been fired, only one bullet was recovered from the body. In the absence